“Louisiana is the world’s prison capital. The state imprisons more of its people, per head, than any of its U.S. counterparts. First among Americans means first in the world. Louisiana’s incarceration rate is nearly triple Iran’s, seven times China’s and 10 times Germany’s.”

That paragraph opens a devastating eight-part series published this month by The Times-Picayune of New Orleans about how the state’s largely private prison system profits from high incarceration rates and tough sentencing, and how many with the power to curtail the system actually have a financial incentive to perpetuate it.

The picture that emerges is one of convicts as chattel and a legal system essentially based on human commodification.... [S]ome facts from the series:

One in 86 Louisiana adults is in the prison system, which is nearly double the national average.

More than 50 percent of Louisiana’s inmates are in local prisons, which is more than any other state. The next highest state is Kentucky at 33 percent. The national average is 5 percent.

Louisiana leads the nation in the percentage of its prisoners serving life without parole.

Louisiana spends less on local inmates than any other state.

Nearly two-thirds of Louisiana’s prisoners are nonviolent offenders. The national average is less than half.

In the early 1990s, the state was under a federal court order to reduce overcrowding, but instead of releasing prisoners or loosening sentencing guidelines, the state incentivized the building of private prisons. But, in what the newspaper called “a uniquely Louisiana twist,” most of the prison entrepreneurs were actually rural sheriffs. They saw a way to make a profit and did. It also was a chance to employ local people, especially failed farmers forced into bankruptcy court by a severe drop in the crop prices.

But in order for the local prisons to remain profitable, the beds, which one prison operator in the series distastefully refers to as “honey holes,” must remain full. That means that on almost a daily basis, local prison officials are on the phones bartering for prisoners with overcrowded jails in the big cities.

It also means that criminal sentences must remain stiff, which the sheriff’s association has supported. This has meant that Louisiana has some of the stiffest sentencing guidelines in the country. Writing bad checks in Louisiana can earn you up to 10 years in prison. In California, by comparison, jail time would be no more than a year.

There is another problem with this unsavory system: prisoners who wind up in these local for-profit jails, where many of the inmates are short-timers, get fewer rehabilitative services than those in state institutions, where many of the prisoners are lifers. That is because the per-diem per prisoner in local prisons is half that of state prisons. In short, the system is completely backward....

Louisiana is the starkest, most glaring example of how our prison policies have failed. It showcases how private prisons do not serve the public interest and how the mass incarceration as a form of job creation is an abomination of justice and civility and creates a long-term crisis by trying to create a short-term solution. As the paper put it: “A prison system that leased its convicts as plantation labor in the 1800s has come full circle and is again a nexus for profit.”

"A Lockean Argument Against the Death Penalty"

The title of this post is the title of this short piece with deep thoughts authored by Vernon Thomas Sarver Jr. and available via SSRN. Here is the abstract:

Initially, I provide a formal characterization of Locke's argument for the death penalty, observing that the language of his Second Treatise on Civil Government subtly allows for restraint in the use of capital punishment. This observation is then augmented by attention to specific themes in his treatise, which collectively weigh against his affirmative conclusion. After this, I introduce an argument against the death penalty, one drawn entirely from Lockean assumptions and new to the literature on capital punishment and social contract theory. This argument, I urge, better reflects the prevailing tenor of his treatise and appears to be on more secure footing within the general framework of his theory of the social contract. Finally, I follow my analyses with a discussion of the relevance this negative argument may have for two public policy issues that have garnered attention recently in the American debate over capital punishment. In a concluding note, I suggest this argument may have merit as a basis for a new strategy by appellants and supporting amici in capital cases on appeal to the United States Supreme Court.

Should pre-sentencing jail misconduct result in denial of acceptance of responsibility reduction?

The question in the title of this post is prompted by this intriguing little federal sentencing story headlined "Maine man in prison longer for refusing black cellmate: Man refused to share a cell with a black man and flooded his cell while being held on federal drug and gun charges." Here are the specifics:

A Bath man who refused to share a cell with a black man and flooded his cell at the Cumberland County Jail while being held on federal drug and gun charges was sentenced Thursday to nearly 11 years in prison.

John Byrd III, 23, pleaded guilty in February to conspiracy to possess with intent to distribute a controlled substance, use of a firearm during a drug trafficking crime and possession of a firearm by an individual subject to a protection order.

Because of Byrd's repeated violation of the jail's rules, U.S. District Judge George Singal did not impose the standard lesser sentence that applies when a defendant pleads guilty, Assistant U.S. Attorney Craig Wolff said Thursday. Under the federal sentencing guidelines, Byrd would have faced two to 3 and 1/2 fewer years behind bars if the judge had not denied the defendant's acceptance of responsibility.

Wolff recommended that Singal deny Byrd the lesser sentence that is imposed in a majority of federal cases in which a defendant pleads guilty. Attached to his sentencing memorandum, the federal prosecutor filed 20 pages of documents that outlined Byrd's refusals to cooperate with jail personnel. The end result was that Byrd was moved from the medium to the maximum security section of the jail.

Byrd faced up to 10 years on the conspiracy and gun possession charges. The using a firearm during a drug trafficking crime count carried a mandatory consecutive minimum of seven years to a maximum of life in prison. Singal sentenced Byrd to three years and 10 months in prison on the drug charge and an additional seven years on the gun charge as it related to the drug conspiracy.

I am not troubled by the notion that post-plea, pre-sentencing misconduct in jail could justify imposing a longer federal sentence under the terms of 3553(a). (Indeed, as one who has long thought that good post-plea, pre-sentencing good conduct should get some credit at sentencing under 3553(a), I bring the same philosophy to bear concerning the consideration of bad pre-sentencing conduct.) But I find somewhat curious the notion that the right way to punish a defendant for this jail misconduct is through the denial of a downward guideline adjustment for accepting responsibility on the underlying offense.

May 25, 2012

Intriguing procedural sentencing reversal in Ninth Circuit

The Ninth Circuit has a bunch of criminal justice rulings today, and I found especially interesting the quirky procedural issue that lead to a reversal in US v. Harris, No. No. 11-10053 (9th Cir. May 25, 2012) (available here). Here is how the opinion starts:

William Harris appeals his sentence of 188 months following his conviction of three counts of assaulting a federal correctional officer. The sentence was imposed by a judge other than the trial judge, whose unavailability for sentencing was unexplained. A judge visiting the District of Arizona imposed the sentence with insufficient familiarity with the case. Because of that unfamiliarity and the unjustified replacement of the trial judge, the sentencing violated Federal Rule of Criminal Procedure 25(b) with prejudice. We vacate the sentence and remand for sentencing by the trial judge.

US Sentencing Commission provides notice of proposed 2013 priorities

The US Sentencing Commission has now posted here its notice of proposed priorities and request for public comment "on possible priority policy issues for the amendment cycle ending May 1, 2013." Here are the most interesting parts of the notice of what "the Commission has identified the following tentative priorities:"

(1) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission's 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, and to develop appropriate guideline amendments in response to any related legislation.

(2) Continuation of its work with the congressional, executive, and judicial branches of government, and other interested parties, to study the manner in which United States v. Booker, 543 U.S. 220 (2005), and subsequent Supreme Court decisions have affected federal sentencing practices, the appellate review of those practices, and the role of the federal sentencing guidelines. The Commission anticipates that it will issue a report with respect to its findings, possibly including (A) an evaluation of the impact of those decisions on the federal sentencing guideline system; (B) recommendations for legislation regarding federal sentencing policy; (C) an evaluation of the appellate standard of review applicable to post-Booker federal sentencing decisions; and (D) possible consideration of amendments to the federal sentencing guidelines. The Commission also intends to work with the judicial branch and other interested parties to develop enhanced methods for collecting and disseminating information and data about the use of variances and the specific reasons for imposition of such sentences under 18 U.S.C. ' 3553(a).

(3) Continuation of its review of child pornography offenses and report to Congress as a result of such review. It is anticipated that any such report would include (A) a review of the incidence of, and reasons for, departures and variances from the guideline sentence; (B) a compilation of studies on, and analysis of, recidivism by child pornography offenders; and (C) possible recommendations to Congress on any statutory and/or guideline changes that may be appropriate.

(4) Continuation of its work on economic crimes, including (A) a comprehensive, multi-year study of '2B1.1 (Theft, Property Destruction, and Fraud) and related guidelines, including examination of the loss table and the definition of loss, and (B) consideration of any amendments to such guidelines that may be appropriate in light of the information obtained from such study.

(5) Continuation of its multi-year study of the statutory and guideline definitions of “crime of violence”, possibly including recommendations to Congress on any statutory changes that may be appropriate and development of guideline amendments that may be appropriate in response to any related legislation.

(6) Undertaking a comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study.

It is easy for most Americans to identify ways in which the government wastes money, but it is not often you come across a federal program that is both wasteful and cruel. The Federal Bureau of Prison’s (BOP) “compassionate release” program fits the bill.

Some background will help. When Congress passed the landmark Sentencing Reform Act of 1984, in the interest of “truth in sentencing” it abolished parole at the federal level and eliminated all but a few opportunities for a judge to revisit and shorten a sentence once it had become final.

One little-known opportunity permits courts to order the immediate release of prisoners in “extraordinary and compelling” circumstances. Although Congress did not restrict this opportunity to situations where an inmate was in grave medical condition, the relief — which became known as “compassionate release” — was limited to such cases.

But, and this is important, a judge cannot act unless the BOP asks the court for the sentence reduction. Before 1994, the BOP would only file motions in court to release terminally ill patients with less than six months to live. It did not matter if the inmate was bedridden or suffered from advanced dementia, or how many taxpayer-funded medical services he required.

In 1994, the BOP slightly broadened its qualifications to include those with a terminal illness and less than a year to live, but it made no difference. BOP’s macabre standard became known as “the death rattle rule,” as in, no death rattle, no release. Despite the wider standard, during the 1990s, an average of 21 inmates a year received compassionate release, a figure that represents 0.01 percent of the federal prison population.

Sentencing reform groups, including Families Against Mandatory Minimums (FAMM), were dismayed by BOP’s cruel administration of the compassionate release program. The Bureau’s nonsensical stinginess resulted in families being kept from their incarcerated loved ones when they died, and in taxpayers footing the bill for extraordinary, end-of-life health care expenses that could have been shouldered by inmates or their families.

In 2007, the U.S. Sentencing Commission adopted sentencing guidelines to broaden eligibility for the compassionate release program. The Commission’s amendment was an overdue but straightforward interpretation of the Sentencing Reform Act. It interpreted to the Act’s “extraordinary and compelling circumstances” to include, but not be limited to, instances where: (1) the inmate is suffering from a terminal illness; (2) he is suffering from a permanent physical or mental health condition that prevents him from caring for himself and from which he is not expected to improve; and (3) the death or incapacitation of the inmate’s only family member capable of caring for the inmate’s minor children.

The BOP responded to this not-too-conservative, not-too-liberal interpretation by promptly ignoring it. Instead, it has continued to follow its grisly death rattle rule.

Nothing has changed. The rate of compassionate release motions filed by the BOP from 2000 to 2001 is the same as it was during the 1990s: an average of just 21 per year. In roughly 24 percent of those motions, the inmate died before the district court even had a chance to rule on the motion. Even the “lucky” ones are often forced to spend their final days fighting the BOP bureaucracy. Under the BOP’s rules, nearly every layer of the bureaucracy gets a chance to say “no” to an inmate seeking compassionate release....

The need for compassionate release is only going to grow. First, the number of older prisoners has increased by 750 percent nationwide over the last two decades. Second, the BOP is already suffering from severe overcrowding; its facilities are operating at 138 percent of capacity.

Lastly, Congress is facing a massive budget problem. Though it is asking agencies to look everywhere for cuts, the BOP is seeking an increase of more than $80 million to activate two new prisons. Even if administered correctly, the compassionate release program cannot solve BOP’s overcrowding problem or Congress’s budget challenges, but it can help.

Taxpayers need not subsidize expensive medical services for inmates who pose no threat to public safety. Ultimately, however, we need to expand the compassionate release program to save more than money. We need to do it save our nation’s soul.

Mandatory minimums require federal drug defendant's sentence of life + five more years in prison

This local story out of Iowa, headlined "Waterloo man given life plus 5 years in prison for drug charges," provides an amusing example of the crazy kinds of sentences that can be required by federal mandatory minimum sentencing provisions. Here are the details:

A eastern Iowa man convicted in a drug distribution ring received a life sentence, plus five years. A U.S. District Court judge sentenced 38-year-old Lawrence Johnson of Waterloo after a jury found him guilty of conspiracy to distribute heroin, distribution of heroin, possession with intent to distribute heroin, possession of a firearm during a drug crime, and being a felon in possession of a firearm.

Assistant U.S. Attorney, Peter Deegan, says the sentence is unusual, but is based on the sentencing guidelines for the crimes. “Because Lawrence Johnson had multiple prior felony drug convictions, he was subject to a mandatory life sentence on the drug conspiracy count. In addition, he was convicted of possession of a firearm in furtherance of drug trafficking offense, which also requires a consecutive sentence of five years. So he was ultimately sentence to a mandatory life sentence, plus an additional five years in prison,” Deegan explains.

Deegan says the heroin distribution ring involving Johnson was widespread. “Including Detroit, Memphis, Chicago and then Cedar Rapids and Waterloo. He would bring about 10 to 20 grams of heroin per trip from Chicago to Iowa, and then it was cut — so that for instance the tens grams would become 30 grams — and he was distributing it into quantities that would be broken down into two-gram bags,” Deegan says.

Deegan says Johnson was facing a very long time in prison even if he hadn’t been sentenced to life plus five years. “Because he was what we call a career offender under the United States sentencing guidelines, he was subject to a recommended range of 360 months or 30 years to life anyway,” Deegan says.

May 24, 2012

Any thoughts on what jurors have been discussing for 25 hours in Edwards case?

The question in the title of this post is prompted by the latest dispatch from reporters in North Carolina who continue to wait for the jury in the Edwards federal criminal case to return a verdict. Here are snippets from this new ABC News report:

After nearly a week of deliberations jurors in the John Edwards trial have yet to reach a verdict, methodically working their way through six criminal charges and a month's worth of testimony about how the former presidential candidate allegedly used campaign donations to cover up a torrid illicit affair.

Jurors today requested exhibits concerning counts 4 and 5 of the indictment, both of which deal with funds from millionaire political donor Fred Baron that were used to help hide Edwards' mistress Rielle Hunter.

Among the evidence jurors are reviewing is a note Baron wrote to Edwards' aide Andrew Young, accompanying an envelope full of cash. "Old Chinese saying: Use cash, not credit cards," read the note, which Baron wrote in December 2007, weeks before the Iowa caucuses. The cash was sent to a Florida hotel, where Young was staying with Hunter to keep her out of view from an increasingly inquisitive press corp....

Jurors also requested Young's bank statement, in which he had received a $20,000 deposit from Baron and another $725,000 from another wealthy Edwards supporter, millionaire heiress Rachel "Bunny" Mellon....

After doling out exhibits piecemeal as the jury requested them, Federal Judge Catherine Eagles today gave the jury all the evidence in the case, a move that could help speed deliberations.

The jury has spent more than 25 hours deliberating since it was charged last Friday. They have taken breaks only for lunch. Edwards was spotted earlier this week, pacing around a second-floor room of the courthouse, occasionally peering at the press gathered outside....

If convicted Edwards can face up to 30 years in prison and be fined more than $1 million, although it is unlikely he will face the most severe penalties.

Especially in white-collar cases of this nature, I tend to assume that a lengthy period of jury deliberation suggests lots of mixed opinions. And mixed juror opinions, in turn, suggests a higher likelihood of a split verdict (which would, in my self-serving view, make a subsequent Edwards federal sentencing proceeding even more interesting). But, not having followed the actual trial here all that closely, maybe there just is lots and lots of stuff for the Edwards jury to discuss in order to sort out all six counts.

"Cruel and Unusual: U.S. Sentencing Practices in a Global Context"

The title of this post is the title of this notable new report released this week coming from the University of San Francisco School of Law's Center for Law and Global Justice. This press release provides a background and summary of this report, and here are excerpts from the press release:

Sentencing laws in the United States are at odds with the country’s human rights obligations to direct its prisons system towards rehabilitation, the University of San Francisco School of Law’s Center for Law and Global Justice said ... in a report examining the sentencing laws of all the countries around the world. U.S. laws increasing the likelihood and length of prison sentences have created a prisons system out of step with the rest of the world. They help to explain why, despite a declining crime rate, the U.S. prison population has grown six-fold since 1980 to become the world’s largest per capita.

The report, “Cruel and Unusual: U.S. Sentencing Practices in a Global Context,” compiles comparative research on sentencing laws around the globe and documents how sentencing laws distinguish the United States from other countries. Researchers found that the United States is in the minority of countries using several sentencing practices, such as life without parole, consecutive sentences, juvenile life without parole, juvenile transfer to adult courts, and successive prosecution of the same defendant by the state and federal government. Conversely, sentencing practices promulgated under international law and used around the world, such as setting 12 as the minimum age of criminal liability and retroactive application of sentencing laws that benefit offenders, are not systematically applied in the United States. Mandatory minimum sentences for crimes and “three strikes” laws are used in the U.S. more widely than elsewhere in the world....

Fact Sheet for “Cruel and Unusual: U.S. Sentencing Practices in a Global Context”

The United States is among only 20% of countries around the world having life without parole (LWOP) sentences. LWOP sentences can never be reviewed and condemn the convict to die in prison.

The United States allows for LWOP sentences for a single, non-violent offense such as drug possession, whereas it is often restricted to multiple, violent crimes in other countries.

The United States is one of only nine countries which have both the death penalty and LWOP, along with China, Comoros, Cuba, Israel, Kazakhstan, Lesotho, Nigeria, and Zimbabwe.

There are currently over 41,000 prisoners serving LWOP sentences in the United States, compared to 59 in Australia, 41 in England, and 37 in the Netherlands. On a per capita basis, the United States LWOP population is 51 times Australia’s, 173 times England’s, and 59 times the Netherlands’....

The United States, Canada, and Micronesia are the only federalist countries known to researchers allowing successive prosecution of the same defendant by federal and state governments for the same crime....

Under international human rights law, if legislators pass a new law to lighten sentences, offenders have a right to benefit from it retroactively. Though 67% of countries have codified that right, the United States has not....

The vast majority of countries (84%) account for the age of the offender at trial, leaving the United States in the minority of countries (16%) trying and sentencing children as adults.

The United States is the only country in the world to use juvenile life without parole (JLWOP) sentences, with an estimated 2,594 juveniles offenders serving such sentences.

SCOTUS limts the limits of Double Jeopardy via 6-3 ruling in Blueford

The Supreme Court this morning handed down one criminal justice opinion in Blueford v. Arkansas (available here). The ruling goes against the defendant, and the Chief Justice wrote the majority opinion which starts and ends this way:

The Double Jeopardy Clause protects against being tried twice for the same offense. The Clause does not, however, bar a second trial if the first ended in a mistrial. Before the jury concluded deliberations in this case, it reported that it was unanimous against guilt on charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. The court told the jury to continue to deliberate. The jury did so but still could not reach a verdict, and the court declared a mistrial. All agree that the defendant may be retried on charges of manslaughter and negligent homicide. The question is whether he may also be retried on charges of capital and first-degree murder....

The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either. When the jury was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury. As a consequence, the Double Jeopardy Clause does not standin the way of a second trial on the same offenses.

Justice Sotomayor, in an opinion joined by Justices Ginsburg and Kagan, has a dissent that starts with these points:

The Double Jeopardy Clause “unequivocally prohibits a second trial following an acquittal.” Arizona v. Washington, 434 U. S. 497, 503 (1978). To implement this rule, ourcases have articulated two principles. First, an acquittal occurs if a jury’s decision, “whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977). Second, a trial judge may not defeat a defendant’s entitlement to “the verdict of a tribunal he might believe to be favorably disposed to his fate” by declaring a mistrial beforedeliberations end, absent a defendant’s consent or a “‘manifest necessity’” to do so. United States v. Jorn, 400 U. S. 470, 486, 481 (1971) (plurality opinion) (quoting United States v. Perez, 9 Wheat. 579, 580 (1824)).

Today’s decision misapplies these longstanding principles. The Court holds that petitioner Alex Bluefordwas not acquitted of capital or first-degree murder, even though the forewoman of the Arkansas jury empaneled totry him announced in open court that the jury was “unanimous against” convicting Blueford of those crimes. Nor, the Court concludes, did the Double Jeopardy Clauseoblige the trial judge to take any action to give effect to thejury’s unambiguous decision before declaring a mistrial as to those offenses. The Court thus grants the State whatthe Constitution withholds: “the proverbial ‘second bite atthe apple.’” Burks v. United States, 437 U. S. 1, 17 (1978).

The quirky question in the title of this post is prompted by this story from the Boston Globe, which is headlined "Ted Kaczynski, the Unabomber, lists himself in Harvard 1962 alumni report; says ‘awards’ include eight life sentences." Here are the details:

Ted Kaczynski, the Unabomber, who is serving life in prison for sending deadly mail bombs, won’t be able to attend his 50th reunion festivities at Harvard College. But he did contribute a bizarre entry to the alumni report for the class of 1962.

While many of his classmates sent in lengthy updates on their lives for the 2 ½-inch-thick “red book,” the entry for “Theodore John Kaczynski” only contains nine lines. The listing says his occupation is “Prisoner,” and his home address is “No. 04475-046, US Penitentiary—Max, P.O. Box 8500, Florence, CO 8126-8500.” Under the awards section, the listing says, “Eight life sentences, issued by the United States District Court for the Eastern District of California, 1998.”...

The widow of one of Kaczynski’s victims said she was “disappointed in Harvard.” Susan Mosser, widow of Thomas Mosser, a 50-year-old advertising executive who was killed in December 1994 when a package exploded in the kitchen of their New Jersey home, said, “Kaczynski is a con artist. He’s a serial killer, he’s a murderer. ... Everything is a game for him to push people’s buttons.” She said if Harvard did not publish his information, she thinks he would have tried to sue the school for excluding it.

A Harvard Alumni Association spokesman confirmed that Kaczynski submitted the entry and said it was considered within the guidelines set for the book, which is titled, “Harvard and Radcliffe Classes of 1962 -- Fiftieth Anniversary Report.” The books are ultimately by the alumni for the alumni, the spokesman said.

“I don’t fault them on that,” said one of Kaczynski’s classmates, John Higginson, who now lives in Arizona and is participating in the reunion events in Cambridge this week. He said the entries are written by the alumni, and rather than making Harvard look bad, the entry makes Kaczynski look bad for writing it.

Kaczynski evaded the FBI for nearly 20 years while killing three people and injuring 23 others with bombs sent through the US mail.

May 23, 2012

Latest polling indicates legalization of marijuana now has strong majority support

As reported in this new Christian Science Monitor article, which is headlined "Poll shows strong support for legal marijuana: Is it inevitable?," the latest (contested) polling data on marijuana policy suggests ever growing support for legalization. Here are excerpts from the piece discussing the poll results and its implications:

A new national poll shows a clear majority of Americans in favor of legalizing and regulating marijuana – "the strongest support ever recorded," according to one pro-marijuana activist.

The Rasmussen poll found that 56 percent of respondents favored legalizing and regulating marijuana similar to the way alcohol and tobacco cigarettes are currently regulated. Thirty-six percent were opposed.

Critics have dismissed the survey, saying its questions were asked in a particularly leading fashion – a charge that Rasmussen contests. But experts who track the issue say the poll is consistent with the overall trend of steadily rising acceptance of marijuana use.

Despite California’s failure to pass Proposition 19 in 2010 – which would have legalized recreational use – some state may legalize marijuana soon, perhaps as early as this November, says Robert MacCoun, a professor at the University of California at Berkeley School of Law, who follows marijuana laws. That means it is time to consider shifting the debate from legalization to consideration of how it should be done, he adds....

Anti-marijuana groups say those questions are premature. If Rasmussen had put facts in the question’s premises, the outcome would have been the opposite, they say. “If they had asked, ‘If you knew that a majority of homicide convicts in New York had smoked marijuana within 24 hours of their convictions, would you be in favor of legalizing it?’ they would have gotten a far different answer,” says David Evans, special adviser to the Drug Free America Foundation. “These questions are so biased and leading, it’s embarrassing.”

He cites Question 10: “As long as they don’t do anything to harm others, should individuals have the right to put whatever drugs or medication they want into their own bodies?”

“This is a clearly very biased finding," he says. "They’ve asked leading questions to get the responses they wanted.”...

Pro-marijuana groups are using the findings to argue that the Obama administration’s raids on state medical marijuana dispensaries are not in concert with the public’s wishes, and that politicians who don’t support further relaxation of penalties are behind the times....

Other supporters of a more liberal US drug policy also seized on the poll. They say this shows the drug war has failed, and that it’s time not only to ease up on social attitudes while bringing in much needed revenue for strapped government. "Polling now consistently shows that more voters support legalizing and regulating marijuana than support continuing a failed prohibition approach,” says Neill Franklin, executive director of Law Enforcement Against Prohibition (LEAP). "If the trends in public opinion continue in the direction they are going, the day is not far away when supporting a prohibition system that causes so much crime, violence, and corruption is going to be seen as a serious political liability for those seeking support from younger and independent voters."

"Justice Department Releases Final Rule to Prevent, Detect and Respond to Prison Rape"

A helpful reader rightly noted to me today that I have failed to give proper coverage to the big news last week concerning the Justice Department's new regulations to implement the Prison Rape Elimination Act (PREA). This recent piece from Corrections.com, which shares the headline of this post, provides an effective and detailed summary of this important development. Here are snippets of this summary:

The Justice Department [last week]] released a final rule to prevent, detect and respond to sexual abuse in confinement facilities, in accordance with the Prison Rape Elimination Act of 2003 (PREA). This landmark rule sets national standards for four categories of facilities: adult prisons and jails, lockups, community confinement facilities and juvenile facilities. This rule is the first-ever federal effort to set standards aimed at protecting inmates in all such facilities at the federal, state and local levels....

The standards set forth in the final rule are binding on the Federal Bureau of Prisons. With regard to states, those that do not comply with the standards are subject to a five percent reduction in funds they would otherwise receive for prison purposes from the department unless the governor certifies that five percent of such funds will be used to enable compliance in future years. No organization responsible for the accreditation of correctional facilities may receive any federal grants unless it adopts accreditation standards consistent with the standards set forth in the final rule.

The administration has also determined that PREA applies to all federal confinement facilities, including those operated by executive departments and agencies other than the Department of Justice....

Congress unanimously passed the Prison Rape Elimination Act in 2003 and created the National Prison Rape Elimination Commission to recommend a set of standards to the attorney general, after which it disbanded pursuant to the act. After receiving the commission’s recommendations in 2009, the attorney general convened an intradepartmental PREA working group that was tasked with reviewing the commission’s recommendations and collecting public feedback on the commission’s proposal. Last year the department published a draft rule for public comment....

To assist federal, state and local agencies in their compliance efforts, the department has funded the National Resource Center for the Elimination of Prison Rape to serve as a national resource for online and direct support, training, technical assistance, and research to assist adult and juvenile corrections, detention, and law enforcement professionals in combating sexual abuse in confinement. Focusing on areas such as prevention strategies, improved reporting and detection, investigation, prosecution, and victim-centered responses, it will identify promising programs and practices that have been implemented around the country and demonstrate models for keeping inmates safe from sexual abuse.

As reported in this AP article, the "Idaho Press-Tribune, along with the Associated Press and 16 other organizations, sued the state of Idaho Tuesday to force officials to let witnesses watch executions from start to finish, arguing that the media has a First Amendment right to view all steps of a lethal injection execution." Here is more about the suit:

The group asked a U.S. District Court judge to require the state to increase witness access to its executions, starting with the upcoming execution of Richard A. Leavitt, a convicted killer scheduled to be put to death on June 12....

Idaho, like most states with lethal injection, bars witnesses from watching as a condemned inmate is brought into the execution chamber, strapped to the table and has IVs inserted into his or her arms. The news organizations say reporters must be able to view executions from start to finish so they can accurately report the events — and any complications that may emerge — to the public....

“This lawsuit is really all about obtaining access to the entire execution process for viewing purposes. It’s very important in a society such as ours to have full transparency in regards to the exercise of government authority,” said Chuck Brown, the attorney representing the news organizations.

The states that grant access to part of the death penalty process say they do so to protect the anonymity of the execution team. Idaho Department of Correction spokesman Jeff Ray said the department had not yet had a chance to review the lawsuit, and that the state’s attorneys would respond to the claims in court.

The lawsuit relies heavily on a 2002 San Francisco-based federal appeals court ruling that found that witnesses should be allowed to view executions from the moment the condemned enters the death chamber until their final heartbeat. Since the ruling, only one state under the court’s nine-state jurisdiction is following it: California, where the case arose. Idaho, Arizona, Washington, Montana and Nevada have all barred witnesses from the first half of lethal injection executions.

Most states nationwide do the same. Of the 27 states that have lethal injection outside of the circuit’s jurisdiction, only Ohio and Georgia allow witnesses to see the entire process....

The Idaho organizations decided to sue after state officials limited access to the execution of Paul Ezra Rhoades. Put to death in November, Rhoades was the first person to be executed in the state in 17 years, and only the second in the last half-century. Media interest in the event was intense, and the department selected four journalists to view the proceedings.

May 22, 2012

Effective coverage of modern reentry issues

The Christian Science Monitor has this terrific, lengthy piece discussing modern reentry challenges facing the nation in the months and years ahead. The piece is headlined "US prison inmates returning to society: How will they be received?". Here are excerpts:

From California to New York, Texas to Michigan, a record number of convicted criminals are either being released from cells or serving time in community-based programs as states, under pressure to cut costs, adopt new philosophies on how to handle nonviolent offenders and many inmates incarcerated in the 1970s and '80s near the end of their terms. In some cases, lawsuits designed to reduce overcrowding are forcing authorities to open prison doors as well.

These days roughly 700,000 ex-cons are hitting US streets each year -- a new high, according to Marc Mauer, executive director of the Sentencing Project, a Washington-based advocacy group. While the vast majority of the inmates are nonviolent, some ... served sentences for serious crimes and are now winning parole in higher numbers.

The result is an unprecedented test -- of authorities' ability to monitor the newly released prisoners, of social service groups' capacity to help them forge new lives, of the inmates' willingness to start over, of communities' tolerance to let them do so.

Nowhere is this social experiment playing out with more intensity than in California, the nation's largest jailer. It is looking to move as many as 33,000 prisoners out of state penitentiaries over the next year alone, many of whom could end up on the streets. It will provide the country's clearest look at how ready many criminals are to be on the outside -- and society's readiness to have them there.

America's arc in getting to this point involved a lot of clanking cell doors. From 1973 to 2009, the US prison population grew by more than 700 percent -- the result of an uptick in crime, huge numbers of drug arrests, and tough sentencing laws. At the end of that time more than 1.6 million people sat behind bars in federal and state penitentiaries, the largest inmate population in the world.

Yet in 2010, for the first time in 38 years, the US prison population declined. Experts cite myriad reasons for the modest (0.3 percent) drop: a decrease in crime in many cities, more use of alternative sentencing, and fewer people put back in prison for parole violations. Early release of inmates for good behavior was also a factor.

Half the states in the country reported a decrease in their prison populations last year. The number of inmates in Michigan, which hit a peak of 51,500 in 2006, now sits around 43,500. The state has closed down 17 penitentiaries and prison camps as a result.

Similarly, New York State has emptied more than 15,000 prison beds over the past decade, mostly through sentencing reform. New Jersey's prison population has dipped, too, in part because of early parole grants. Even rawhide-tough Texas gave up plans five years ago to build eight new prisons, channeling the money instead into probation programs, outpatient treatment, and drug courts.

"We're starting to see a triumph of sound science over sound bites," says Adam Gelb, who studies criminal justice issues at the Pew Center on the States, a Washington research group. "State leaders from both parties are adopting research-based strategies that are more effective and less expensive than putting more low-risk of-fenders into $30,000-a-year taxpayer-funded prison cells."

While states are emptying cell beds for different reasons, the one common motive is the high cost of keeping so many people behind bars. States now spend more than $51 billion a year on prisons -- the equivalent of the gross domestic product of Syria. Prisons represent one of the fastest-growing items in state budgets at a time of pressing fiscal penury. Many states face fraught decisions over whether to spend money on classrooms or concertina wire.

Reducing prison budgets, in part by sentencing nonviolent offenders to programs outside prison walls, is one of the few issues many groups on the left and right now agree on. "There's more cooperation on this topic than on any other that I can think of right now," says Marc Levin of Right on Crime, a conservative group whose supporters include former presidential candidate Newt Gingrich, antitax crusader Grover Norquist, and former Florida Gov. Jeb Bush.

One professional vice made worse by this blog is my tendency to root for interesting and high-profile criminal defendants to get convicted so that I have interesting and high-profile sentencings to discuss. This spring, there are two on-going federal trials that fit this bill. And today, as reported in these two posts at Josh Gerstein's Under the Radar column at Politico, it seems are notable developments in both trials:

I have not followed either of these cases closely enough to know if I should start gearing up potential federal sentencing guideline calculations. But I do know that the arguments likely to be made at any sentencing in either of these cases ought to be very blog-worthy.

Anyone eager to start the predictions game in the comments either as to likely verdicts or possible sentences?

Interesting new JPI study on monies (over?)spent on police forces

As reported in this press release, the Justice Policy Institute today has published a notable new report on police forces. According to the press release, this new report, titled "Rethinking the Blues: How we police in the U.S. and at what cost," asserts that modern "police forces have grown from locally-funded public safety initiatives into a federally subsidized jobs program, with a decreasing focus on community policing and growing concerns about racial profiling and 'cuffs for cash,' with success measured not by increased safety and well-being but by more arrests." The report's executive summary is available at this link, and here are excerpts:

Although crime rates are at the lowest they have been in over 30 years, the number of arrests has declined only slightly between 2009 and 20102 and the U.S. still spends more than $100 billion on police every year. This money goes to fund 714,921 sworn police officers and an increasing number of militarized police units.

Police play a role in protecting communities from violent and property crime. However, police forces have morphed over the years from a locally-funded and managed entity to protect public safety, to also serving as a federally-funded jobs initiative, an engine for surveillance, and a militaristic special forces agency engaged in a war on drugs, gangs, and youth. Federal government funds and involvement have helped create large police forces that are disconnected from communities and operate in a punitive rather than preventative way resulting in more arrests, more prison, and more costs to taxpayers, among other negative effects on communities. It is not just the sheer number of police that lead to more arrests and more prison, but also the style of policing, which treats entire communities as though they should be contained, surveilled, and punished....

RECOMMENDATIONS

1. Reform laws and sentencing so police don’t have to pick and choose. State and federal policymakers must take sentencing reform seriously, reducing the harmful impacts of harsh sentences, and must examine both drug laws and those related to other lesser offenses to determine where they might be rolled back or eliminated completely.

2. Reallocate resources to positive social investments known to improve public safety. Research shows that investing in services and programs that keep people out of the justice system is more effective at improving public safety and promoting community well-being than investing in law enforcement.

3. Focus law enforcement on the most serious offenses. Arrests for low-level offenses have less of an impact on public safety, but still use up considerable law enforcement resources. Focusing law enforcement efforts on the more serious offenses will allow officers to use their resources more effectively, thereby improving public safety.

4. Implement policies that allow police to issue citations over arrests for certain offenses. A number of cities across the country have started to recognize the waste involved in arresting people for certain low-level offenses, which result in people spending days and sometimes longer in jails.

"The Kinder, Gentler Drug Czar Still Wants to Lock You Up for Pot"

Drug Czar Gil Kerlikowske has a new article on The Huffington Post where he once again attempts to fulfill his statutory duty to scare the bejeezus out of Americans who might be considering the legalization of marijuana in three states and the medicalization of marijuana in a dozen others. This time he cites stats from something called ADAM, warning that over half of arrestees in ten surveyed metro areas tested positive for drugs! You need to be afraid, very afraid, of the crime-seeking drug junkies!

He opens by setting the "Kinder Gentler Drug Warrior" frame established by his former adviser, Kevin Sabet, Ph.D. -- the idea that both legalization and prohibition are ideological extremes. Gateway Gil has even begun using our terminology ("we can't arrest our way out of this problem") to pretend that the Obama Administration presents a rational, compassionate third approach...

How does that "third way" work? Well, instead of busting you for smoking pot and putting you in a cage, the kinder gentler drug warrior will bust you for smoking pot and put you before a judge in a drug court who lets you "choose" between rehab and a cage. Then in rehab, they'll force you to swallow and regurgitate lies about your "problem" marijuana use, require you to pee in a cup and, should that turn up positive, put you in a cage for smoking pot for a longer time than if you'd just chosen the cage in the first place. See, in the old "War on Drugs" paradigm, we only created jobs and revenue for cops, judges, lawyers, and prison guards. With the "Kinder Gentler War on Drugs," we add jobs for rehabs, pee testers, and probation officers, too.

They say if you want to understand an organization's priorities, don't look at their mission statement, look at their budgets.... The Obama Administration has, indeed, increased funding for treatment and prevention over the Bush Administration's budgets. But Obama has increased funding for law enforcement, interdiction, and international funding, too. In overall terms, Obama has devoted $102 billion in his first term to the War on Drugs, while in Bush's last four years, the figure is $91 billion. The percentage of the War on Drugs that is still dedicated to the "war" side averages at 59.3 percent throughout the first four years of Obama, when it averaged 59.0 percent in the last four years of Bush.

May 21, 2012

This new article from the Austin American-Stateman, which is headlined "Judge: Parole officials can be held liable over sex offender restrictions," reports on a notable ruling from a federal judge concerning suits against how Texas has managed its sex offender registry. Here are the details:

In the latest rebuke of state policies for classifying parolees as sex offenders, an Austin federal judge has ruled that top state parole officials can be held personally liable for continuing missteps.

U.S. District Judge Lee Yeakel of Austin, in an order issued late Friday, blasted the state's continuing refusal to provide due process hearings before imposing restrictive sex-offender conditions on felons never convicted of a sex crime. Yeakel for the first time ruled that the seven-member state Board of Pardons and Paroles, 12 parole commissioners, state parole director Stuart Jenkins and other parole officials can face monetary damages for their actions.

It's a significant determination that, if not reversed on appeal, could prove costly for both the officials and taxpayers, if several pending inmate lawsuits are successful. A jury verdict in another case two years ago cost the state approximately $80,000, officials involved in that case said earlier....

The order was the latest setback for the Texas Board of Pardons and Paroles and state corrections officials, who have insisted for years that, to ensure public safety, they could impose the stringent conditions on parolees without a due process hearing.

Although previous court rulings have required the hearings, the state has not routinely offered them until recently — and only then under certain circumstances. Yeakel's order — the latest ruling to indicate that federal courts have lost their patience with the state — came in a suit filed by parolee Buddy Jene Yeary.

Last fall, the judge blocked the state from enforcing the sex offender restrictions — officially known as Special Condition X — on Yeary, an unusual step for a judge to take. According to state records, Yeary pleaded guilty to drug charges in 2003 in Johnson County, south of Fort Worth, and was sentenced to 25 years in prison. Though he was initially indicted on charges of aggravated sexual assault of a child, his sentence order states that "the sex offender registration requirements (in state law) do not apply to the defendant," according to the suit.

Despite that, state records show that when Yeary was paroled in the summer of 2007, parole officials required him to register as a sex offender, placed him under the restrictive sex-offender conditions of release and ordered him to participate in a sex offender treatment program.

In his order Friday, Yeakel ruled that the state has for six years been aware that it must provide hearings to parolees in such cases and that officials' continuing failure to do so leaves them open to liability. "In light of the resistance of the state of Texas to providing parolees with the procedural due process guaranteed them by the Constitution, even after receiving repeated mandates from federal and state courts, the court is unconvinced that Texas will not return to its unconstitutional policies and practices," the 31-page order states. "Any stigmatic injury suffered by Yeary due to the imposition and continued enforcement of Special Condition X may entitle Yeary to compensatory damages."

Yeakel refused to dismiss Yeary's lawsuit, as state officials had asked. Instead, he said it would head to a trial....

The ruling comes after years of legal decisions requiring state parole officials to provide hearings before they impose sex offender restrictions on felons never convicted of a sex crime. In addition to federal courts, the state Court of Criminal Appeals last fall ordered the restrictions removed from the parole conditions for a Houston kidnapper because he was not afforded a due process hearing before they were imposed and because he had not been convicted of a sex crime.

The news story jointly published by ProPublica and The Washington Post on May 14 [blogged here] revealed disturbing new information about misconduct in the Office of the Pardon Attorney (OPA) at the U.S. Department of Justice with regard to applicants for sentence commutations. The story follows an earlier report released last December about OPA’s role in the pardon process. For those of us who were already concerned that the OPA was hindering the clemency process, the two stories confirmed our fears. It is time for action. We urge you to investigate the activities of the OPA since at least 2001 and to hold an oversight hearing as soon as possible to review the serious questions that have been raised in these news reports....

The OPA was created ostensibly to assist the president in the exercise of this important function. The recent media investigations into the OPA’s activities, however, suggest that there are troubling racial disparities in the application of pardons and that OPA is withholding or misrepresenting critical information from the presidents it is supposed to serve. Taxpayers should not be forced to subsidize an office that is abusing its power, nor should applicants for executive clemency face a deck that is stacked against them in secret.

What can and should we learn from the new "National Registry of Exonerations"?

As effectively reported via MSM coverage from CNN and the AP and other sources, today marked the roll-out of this amazing new web resource stlyed "The National Registry of Exonerations." As explained on the site, this registry "is a joint project of the University of the Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law" and it aspires to "maintain an up to date list of all known exonerations in the United States since 1989." This press release via the folks at Northwestern provides some of the highlights (or should I say lowlights) about what this registry reveals and should teach us about mistakes in the criminal justice system:

More than 2,000 people who were falsely convicted of serious crimes have been exonerated in America in the past 23 years. Nearly 900 of these exonerations are profiled, with searchable data and summaries of the cases on the National Registry of Exonerations...

More than 1,000 additional cases are “group exonerations” that occurred in response to 13 separate police corruption scandals, most of which involved massive planting of drugs and guns on innocent defendants. The group exonerations are described in a report from the National Registry, “Exonerations in the United States, 1989 – 2012,” but are not included in the registry itself.

As the report documents in detail, there are many more false convictions and exonerations that have not been found. “The National Registry of Exonerations gives an unprecedented view of the scope of the problem of wrongful convictions in the United States,” said Rob Warden, executive director of the Center on Wrongful Convictions. “It’s a widespread problem.” “It used to be that almost all the exonerations we knew about were murder and rape cases. We’re finally beginning to see beyond that,” said Michigan Law professor Samuel Gross, editor of the registry and an author of the report. “This is a sea change.”

The report includes the following cases, most of which do not appear in any previous compilation:

129 exonerations of defendants who were convicted of crimes that never happened

135 exonerations of defendants who confessed to crimes they didn’t commit

71 exonerations of innocent defendants who pled guilty

Plus more than 1,000 group exoneration cases – including more than 200 drivers who were framed for drunk driving by police officers, who usually stole money from their wallets in the process.

[T]he cases in the registry show that false convictions are not one type of problem but several that require different types of solutions.

For murder, the biggest problem is perjury, usually by a witness who claims to have witnessed the crime or participated in it. Murder exoneration also include many false confessions.

In rape cases, false convictions are almost always based on eyewitness mistakes -- more often than not, mistakes by white victims who misidentify black defendants.

False convictions for robbery are also almost always caused by eyewitness misidentifications, but there are few exonerations because DNA evidence is hardly ever useful in robbery cases.

Child sex abuse exonerations are almost all about fabricated crimes that never occurred.

The 10 states with the most exonerations are Illinois, New York, Texas, California, Michigan, Louisiana, Florida, Ohio, Massachusetts and Pennsylvania (not counting the 39 exonerations in federal cases). The states with most exonerations are not necessarily those where most false convictions have occurred. “It’s clear that the exonerations we found are the tip of an iceberg,” said Gross. “Most people who are falsely convicted are not exonerated; they serve their time or die in prison. And when they are exonerated, a lot of times it happens quietly, out of public view.”

I hope to find some time to review the summary findings and this full report from the registry in order to draw some additional (sentencing-related?) lessons from this extraordinarily important and valuable new criminal justice resource.

Dharun Ravi sentenced to only 30 days in jail in NJ webcam case

As reported in this ABC News piece, "former Rutgers student Dharun Ravi was sentenced to 30 days in jail by a New Jersey judge today for spying on his roommate's gay tryst." Here are more about the basics:

The prosecution, which sought a significant prison term, indicated it will appeal the judge's sentence.

Before the judge's sentencing, Ravi's mother delivered an emotional plea for leniency during which she and her son both broke into tears. At the end of her plea, Ravi's mother threw herself on her son, sobbing and hugging him.

In March, Ravi was found guilty of a bias crime for using a webcam to spy on his gay roommate Tyler Clementi. The family of Tyler Clementi, the Rutgers freshman who committed suicide after his roommate broadcast a gay sexual tryst, bitterly asked the judge today to sentence Ravi to prison time.

Clementi's father, Joseph Clementi, told the judge, "One of Tyler's last actions was to check Ravi's Twitter page" and noted that his son checked his roommate's Twitter page 37 times before leaving the Rutgers campus and driving to the George Washington Bridge where he jumped to his death....

Ravi was convicted of invasion of privacy, bias intimidation, witness tampering and hindering arrest, stemming from his role in activating the webcam to peek at Clementi's date with a man in the dorm room on Sept. 19, 2010.

I think this sentence is a bit light, all things considered, but the many direct and indirect consequences of the prosecution and convictions that Ravi has endured and will continue to face (including potential deportation) arguably is greater punishment than any jail term. These varied criminal justice consequences ought also help in some small way deter others from similar acts of "colossal insensitivity," though nobody should really expect this case (or any punishment for Ravi) to really impact the tendency of young people to be insensitive sometimes.

I have no idea if NJ state prosecutors have much chance of getting a longer sentence through an appeal; perhaps some local NJ lawyers might report if they do. Especially in these lean budget times, I do not quite see why an appeal here would be a wise use of limited resources unless prosecutors can identify some legal error in the sentencing process for Ravi.

This morning's New York Times has this article, headlined "Doctors Seek New Approach for Jailed Addicts," discussing a notable appellate brief filed in a high-profile federal drug sentencing case. Here are the interesting details:

A group of prominent addiction doctors has mounted a quiet legal campaign on behalf of Cameron Douglas, the troubled son of the actor Michael Douglas, in hopes of finding a sympathetic ear for their view that drug addiction is best handled with more treatment, not more prison time.

In December, Mr. Douglas, who is 33 and already serving a five-year federal sentence for drug distribution and heroin possession, was sentenced to an additional four and a half years after being caught behind bars with heroin and Suboxone, a prescription medication used to blunt the pull of opioid addiction.

And it was that sentence, believed to be one of the harshest ever handed down by a federal judge for drug possession for an incarcerated prisoner, that prompted about two dozen addiction doctors and groups to file a brief on behalf of Mr. Douglas, whose case is under review by a panel from the United States Court of Appeals for the Second Circuit.

Their argument is that Mr. Douglas, who began injecting heroin daily in his mid-20s, is a textbook example “of someone suffering from untreated opioid dependence” and that more prison time would do nothing to solve his underlying problems. “My outrage is as a physician for someone who has a medical condition which has been ignored,” said one of the brief’s signees, Dr. Robert Newman, the director of the Baron Edmond de Rothschild Chemical Dependency Institute at Beth Israel Medical Center. “What the judge has imposed has zero benefits for the community and has staggering consequences for society.”

The sentence, handed down by Judge Richard M. Berman of Federal District Court in Manhattan, came after heroin and Suboxone was found in a cell Mr. Douglas was occupying at the Metropolitan Correctional Center in New York, while testifying against a former drug supplier. Shortly after that, he pleaded guilty to one count of drug possession by a federal prisoner.

Such charges are unusual; most inmates caught with drugs behind bars are sanctioned administratively with loss of prison privileges, said Daniel N. Abrahamson, the director of legal affairs with the Drug Policy Alliance, the drug reform group that drafted the brief. Those punishments have also been levied on Mr. Douglas, whose penalties have included stints of isolated confinement in his cell and loss of family visits.

At a sentencing in December, prosecutors asked for an additional term of anywhere from 18 to 24 months, according to Mr. Douglas’s appeal. But Judge Berman made it clear that his patience with Mr. Douglas was done, saying the inmate had been “continuously reckless, disruptive and noncompliant” and had repeatedly squandered opportunities and refused to obey the law.

Mr. Douglas would seem an unlikely candidate for a cause célèbre, as the scion of an acting family. But Mr. Abrahamson said the case had little to do with Mr. Douglas’s fame, though he acknowledged that few inmates have the resources needed to wage an appeal in federal court. He said the goal of the brief was not only to help obtain a reduction, or dismissal, of Mr. Douglas’s 54-month sentence, but also to have the appellate panel make a statement on “how the federal corrections systems, in particular, but corrections in general have for a long time ignored the treatment need of their inmates.”

Mr. Douglas’s travails since his arrest, including episodes in which drugs were smuggled to him while he was incarcerated, have been tabloid fodder, something Howard Josepher, another of the brief’s signees, said has probably made efforts at recovery harder. “A guy like this gets into prison, he’s got star power, so people inside actually they want to get close to him,” said Mr. Josepher, who runs the New York-based Exponents, which offers drug treatment programs. “And they do that by offering him drugs.”

Mr. Josepher, 73, an ex-convict and heroin user who said he has been clean for 45 years, said he hoped Mr. Douglas’s case would highlight what he called a contradictory approach to drug abuse by the criminal justice system. “The various powers that be view addiction as a disease,” he said. “But they treat people who have this illness as criminals.

I will provide a link to this "doctors' brief" if and when I can track down a copy. This article makes me hopeful that the Second Circuit might issue an important opinion concerning reasonableness review in this case, though it is often hard to predict whether and when high-profile cases will produce truly consequential court rulings.

Detailing declines in capital indictments and sentences in Ohio

This new article from my own Columbus Dispatch, which is headlined "Death-penalty cases drop: New sentencing options and changes in attitudes mean fewer are being sent to Death Row," provides an accounting of changes in the administration of the death penalty in Ohio in recent years. Here are excerpts:

Franklin County sent 17 people to Death Row from 1985 to 2003, an average of nearly one a year. Then things changed. The death sentence imposed last week on Caron E. Montgomery was the county’s first in nearly nine years.

The numbers have declined statewide, as well. Since the state’s current death-penalty statute was enacted in 1981, the number of Ohioans sentenced to death fell from a record 24 in 1985 to one in 2009. Last year, three people were sent to Ohio’s Death Row.

“I don’t think there’s any one reason for it,” said Ohio Public Defender Timothy Young. “I think it’s a combination of reasons.” The reasons include a change in cultural attitudes about the death penalty, the financial burden associated with trying and appealing such cases and the availability of life without parole as an alternative, he said.

Franklin County Prosecutor Ron O’Brien said his office began reassessing how it handles potential death-penalty cases in 2005. “We’re looking at mitigating factors now, just as a judge or jury would, and not just at the crime,” he said. “We’re asking, ‘What is the realistic possibility of obtaining the death penalty in this case?’ ”

Death-penalty indictments in Franklin County dropped dramatically as a result, from 34 in 2004 to five in 2005. Last year, three death-penalty indictments were filed in the county. O’Brien said he changed his approach to the cases after working with the U.S. attorney’s office in early 2005 on the federal death-penalty case against Daryl Lawrence, who was convicted of murdering Columbus police Officer Bryan Hurst and sentenced to death by a federal jury....

The Lawrence case also coincided with a 2005 change in state law that allowed a life sentence without parole to be imposed for aggravated-murder cases that didn’t qualify for the death penalty. Previously, life without parole was only possible in death-penalty cases. “Suddenly, prosecutors didn’t have to file a death-penalty indictment to get to life without parole,” Young said.

He thinks that’s among the reasons for a statewide decline in death-penalty indictments, from 98 in 2004 to 56 in 2011. Only Cuyahoga County continues to indict a significant number of death-penalty cases. In the past three years, 115 were indicted there, accounting for 53 percent of all death-penalty cases in the state.... But for all those indictments, Cuyahoga County sent only three defendants to Death Row in the past three years.

All 33 states with the death penalty on the books now allow judges and juries to consider life without parole as an alternative, said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.... “Juries are hesitant about the death penalty because of all the revelations about wrongful convictions,” Dieter said. “Life without parole is seen as an acceptable alternative.”

May 20, 2012

I am pleased to see that the extreme mandatory minimum sentence given to Marissa Alexander in Florida is continuing to generate controversy and criticism in the MSM. This AP article, headlined "Critics hit mandatory-minimum law after woman gets 20 years in prison for firing warning shot," highlights some of the buzz:

Marissa Alexander had never been arrested before she fired a bullet at a wall one day in 2010 to scare off her husband when she felt he was threatening her. Nobody got hurt, but this month a northeast Florida judge was bound by state law to sentence her to 20 years in prison.... Because she fired a gun while committing a felony, Florida’s mandatory-minimum gun law dictated the 20-year sentence.

Her case in Jacksonville has drawn a fresh round of criticism aimed at mandatory-minimum sentencing laws. The local NAACP chapter and the district’s African-American congresswoman say blacks more often are incarcerated for long periods because of overzealous prosecutors and judges bound by the wrong-headed statute. Alexander is black.

It also has added fuel to the controversy over Florida’s “stand your ground” law, which the judge would not allow Alexander to invoke. State Attorney Angela Corey, who also is overseeing the prosecution of shooter George Zimmerman in the Trayvon Martin case, stands by the handling of Alexander’s case. Corey says she believes Alexander aimed the gun at the man and his two sons, and the bullet she fired could have ricocheted and hit any of them.

At the May 11 sentencing, Alexander’s relatives begged Circuit Judge James Daniel for leniency but he said the decision was “out of my hands.” “The Legislature has not given me the discretion to do what the family and many others have asked me to do,” he said.

The state’s “10-20-life” law was implemented in 1999 and credited with helping to lower the violent crime rate. Anyone who shows a gun in the commission of certain felonies gets an automatic 10 years in prison. Fire the gun, and it’s an automatic 20 years. Shoot and wound someone, and it’s 25 years to life.

Critics say Alexander’s case underscores the unfair sentences that can result when laws strip judges of discretion. About two-thirds of the states have mandatory-minimum sentencing laws, mostly for drug crimes, according to a website for the Families Against Mandatory Minimums advocacy group. “We’re not saying she’s not guilty of a crime, we’re not saying that she doesn’t deserve some sort of sanction by the court,” said Greg Newburn, Florida director for the group. Rather, he said, the judge should have the authority to decide an appropriate sanction after hearing all the unique circumstances of the case....

Victor Crist was a Republican state legislator who crafted the “10-20-life” bill enacted in 1999 in Gov. Jeb Bush’s first term. He said Alexander’s sentence — if she truly did fire a warning shot and wasn’t trying to kill her husband — is not what lawmakers wanted. “We were trying to get at the thug who was robbing a liquor store who had a gun in his possession or pulled out the gun and threatened someone or shot someone during the commission of the crime,” said Crist, who served in the state House and Senate for 18 years before being elected Hillsborough County commissioner....

“The irony of the 10-20-life law is the people who actually think they’re innocent of the crime, they roll the dice and take their chances, and they get the really harsh prison sentences,” Newburn said. “Whereas the people who think they are actually guilty of the crime take the plea deal and get out (of prison) well before. So it certainly isn’t working the way it is intended.”...

Newburn says Alexander’s case is not an isolated incident, and that people ensnared by mandatory-minimum laws cross racial barriers. In central Florida, a white man named Orville Lee Wollard is nearly two years into a 20-year sentence for firing his gun inside his house to scare his daughter’s boyfriend. Prosecutors contended that Wollard was shooting at the young man and missed.

He rejected a plea deal that offered probation but no prison time. Like Alexander, he took his chances at trial and was convicted of aggravated assault with a firearm. Circuit Judge Donald Jacobsen said he was “duty bound” by the 10-20-life law to impose the harsh sentence. “I would say that, if it wasn’t for the minimum mandatory aspect of this, I would use my discretion and impose some separate sentence, having taken into consideration the circumstances of this event,” Jacobsen said.

"Plea-bargaining cases: Form over substance"

The title of this post is the headline given to this notable commentary in the National Law Journal by Harlan Protass concerning what the significant SCOTUS rulings in Lafler and Frye did not do. Here are excerpts:

Lafler and Frye no doubt provide an important remedy to criminal defendants who didn't receive effective assistance from their lawyers in plea negotiations and, thus, were subjected to less favorable outcomes. But neither decision provides any real support to attorneys actually looking to effectively help their clients decide whether or not to go to trial. Rather, only changes in the rules governing governmental disclosure obligations will.

Fifty years ago in Brady v. Maryland (1963), the Supreme Court recognized the importance of disclosing favorable information to criminal defendants bearing on either their guilt or punishment.... Since then the Supreme Court has held in U.S. v. Agurs (1976) that the duty to disclose exculpatory evidence applies even if there has been no request by a defendant or his lawyer and, in U.S. v. Bagley (1985), that the information government lawyers must disclose includes impeachment as well as exculpatory evidence....

Disclosure of all Brady material is obviously important for purposes of trial. But it's also critical to defense counsel seeking to size up a case and advise their clients concerning the key question of whether or not to go to trial. After all, it's difficult to give good legal advice without a full picture of the government's case. Effective assistance of counsel in the context of plea negotiations therefore is difficult to provide without all Brady material in hand....

[But] uncertainty continues as to when favorable Brady material must be disclosed. According to the NACDL, most courts apply a vague and confusing rule requiring disclosure only "in time for the defense to reasonably use the evidence." Moreover, most federal district courts don't have clear directives specifying the timing of disclosure. And DOJ's own guidelines still provide ­prosecutors with broad discretion concerning the timing of Brady disclosures....

Various proposals have been made to change the timing of Brady disclosures, thereby giving defense lawyers a real chance in plea negotiations — in other words, the materials they need to provide the effective assistance of counsel contemplated by Lafler and Frye. For example, proposed legislation entitled the "Fairness in Disclosure of Evidence Act of 2012" would require — "without delay after arraignment and before entry of any guilty plea" — prosecutors to turn over all evidence that "may reasonably appear favorable" to a criminal defendant....

Lafler and Frye surely provide important procedural protections for criminal defendants. They permit relief even after trial for the failure of a defense lawyer to communicate a plea offer or provide competent advice concerning such an offer. Notwithstanding those benefits, discovery reform, rather than post-conviction procedural protections, is the best means for assuring that criminal defendants receive effective assistance of counsel when considering government plea offers.

This lengthy article, headlined "Prisoners challenge extended confinement for sex crimes," provides an effective report on the nature and status of the legal issues surrounding sex offenders that the feds have civilly committed after they have completed their prison terms. Here are excerpts:

The high walls surrounding the Federal Correctional Complex at Butner leave no doubt that it’s a prison. But for dozens of men held behind those walls, there is a growing question of whether they should be prisoners.

They have served their time and now are being imprisoned not for what they did, but what they might do. They are sex offenders being held -- sometimes for years -- under a recent federal law that allows the detention of those deemed so dangerous the government will not risk their release even when their sentence is complete. Now, with the bulk of the detainees being held at Butner, federal courts in North Carolina are trying to sort out who should remain in and who should be released from this legal limbo.

Lawyers for the detainees say the extended captivity reflects a law that applies a different and unfair standard to sex offenders. They also say many detainees do not meet the level of threat the 6-year-old law requires for indefinite detention. “The law doesn’t seem fair to me,” said Raleigh attorney John Keating Wiles, who has represented several of the men. “Traditionally, we don’t take away people’s liberty because they might commit a crime.”

The U.S. Department of Justice has sought to extend the confinement of at least 136 sex offenders since 2006, but almost half the attempts have been rejected by the courts or dropped by the government. Of the men being held for hearings, some, indeed, have criminal histories and behavioral offenses inside prison that raise questions about their release into the community.

In some cases, though, it is unclear whether the problems are deviant sexual compulsions or broader mental impairments and illness compounded by drug and alcohol abuse. By law, a federal judge must rule on whether a detainee is too dangerous to be released. In the Eastern District of North Carolina, a visiting judge from Michigan has been brought in, and several district judges have been assigned to help clear a backlog of cases that stacked up in the first four years after the law was passed.

Many cases were stalled by the lawsuit brought on behalf of Graydon Comstock, one of the first to be detained as sexually dangerous after serving time for receiving child pornography. In 2011, a year after the U.S. Supreme Court ruled the government had that authority, a federal court ruled on the merits of classifying Comstock as sexually dangerous and found he did not qualify for commitment.

Eric J. Brignac, a federal public defender who has been involved with many of the cases in the state’s Eastern District, said the commitment procedure has highlighted a societal challenge. “It’s that tension between liberty and security,” Brignac said....

Each case essentially becomes a battle of the experts, with the government presenting doctors, psychologists and mental health analysts to bolster its claims. The defense brings in experts who offer their own assessments. It is up to a judge to sort through the opinions and evidence....

Thomas Shane Matherly, 36, who was scheduled for release in November 2006 but awaits a hearing on whether he’s sexually dangerous, was in New Bern in March in a federal courthouse making an argument similar to that made by the so-called “enemy combatants” detained at Guantanamo Bay. He argued that he is being wrongly held and is seeking damages of more than $50 million for emotional pain and suffering.

Court filings in his case offer a picture of life inside Butner for sex offenders caught in the legal limbo. His life is like that of a prisoner. He wears an inmate uniform and eats in the prison mess hall. Matherly contends that he and others in a similar circumstance often are called “baby rapers” and “child molesters,” taunts that “very likely could lead to a physical confrontation at some point.”

In some ways, Matherly contends, his detention under the civil procedure has been more restrictive than when he was serving his sentence for possessing child pornography. Prisoners can take classes in blueprint reading, carpentry, car care and electrician skills, he contends, but detainees may not. Narcotics Anonymous and Alcoholics Anonymous sessions are not available to the detainees, he says. The detainees are not given as much access to the recreation yard, he complains, or the recreation center with TVs, pool tables, basketball courts, exercise equipment, a band room and hobby-craft rooms.

“The government cannot have it both ways,” Matherly stated in court documents seeking damages. If the confinement is part of a civil process, he further stated, he should not be confined like a criminal. “Civil means civil,” Matherly stated, “with all the rights that accompany it.” Matherly argues that he has “the right to be free from harm.”...

The men branded by the government as sexually dangerous ostensibly are being held because they are mentally ill and need treatment, but few have enrolled in the sexual offender treatment program. Lawyers and mental health workers advise them to be careful what they say in therapy, acknowledging that it could be used against them at trial....

Some question whether the underlying notion behind the new commitment procedure is about treating the sickest and most dangerous or more about issuing life sentences in cases where criminal law would not otherwise allow. Though prison statistics show low recidivism rates among sex offenders, high-profile cases of repeat offenders have left a lingering belief to the contrary. “In general, sex offenders are seen as different,” said Brignac, the public defender. “I think, in part, it is because we see them as incurable.”

Does six months in prison for Dharun Ravi seem about right in Rutgers webcam case?

The question in the title of this post is prompted by tomorrow's scheduled sentencing for Dharun Ravi, the former Rutgers student convicted of multiple crimes in the high-profile New Jersey webcam spying case. These local articles highlight all the different perspectives that can be brought to bear:

The top piece above is an editorial making this argument for no prison time for Ravi:

When Dharun Ravi stands before a judge tomorrow, by law he must be sentenced to state prison for his crimes against Tyler Clementi and a visitor. But not, however, in the exceptional circumstance that it “would be a serious injustice.” That clause has been narrowly interpreted by the courts and invoked rarely. It applies only when the injustice of imprisoning someone “overrides the need to deter such conduct in others.”

This is just such a case. Judges must have the ability to do what’s right. And the right thing here is not to send Ravi to state prison, a holding pen for violent and dangerous criminals. What he did was beyond mean — but certainly not monstrous.

The judge should use his power to make that extraordinary call, and instead order probation and community service. If Ravi does get some jail time, he should be released on bail pending appeal. Otherwise, he may end up serving his sentence before his appeal is even heard.